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People v. Ceja6/23/1994
f-defense one must have an honest and reasonable belief in the need to defend. [Citations.] A bare fear is not enough; 'the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.' [Citation.]" (People v. Flannel, supra, 25 Cal. 3d at pp. 674-675, emphasis in original.)
A genuine but unreasonably held belief in the need to defend negates the malice and reduces the offense to manslaughter. (25 Cal. 3d at p. 680.) The California Supreme Court in the very recent case of In re Christian S. 94 Daily Journal D.A.R. 6607 upheld the continued viability of the imperfect self-defense and concluded that "when the trier of fact finds that a defendant killed another person because the defendant actually but reasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder." (Id. at p. 6612; see also People v. De Leon (1992) 10 Cal. App. 4th 815, 821-825.)
"A person who kills another in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury may be guilty of voluntary or involuntary manslaughter depending on the existence of an intent to kill. [Citations.]" (People v. Glenn, supra, 229 Cal. App. 3d at p. 1467.)
While defendant testified that the victim pulled a gun from his waistband and that defendant saw the barrel of the victim's gun before defendant shot the victim, no gun was found at the scene and prosecution witnesses testified that the victim did not have a gun. Additionally, defendant testified he did not want to hurt the victim but was frightened. The jury was entitled to accept portions of a witness's testimony and to disbelieve other portions (see Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d 51, 67-68, 107 Cal. Rptr. 45, 507 P.2d 653) and might well have concluded that the defendant was mistaken about the victim being armed but also have concluded that the defendant honestly but unreasonably believed his life was in danger, making the killing at most voluntary or involuntary manslaughter. (See People v. Glenn, supra, 229 Cal. App. 3d at p. 1467.)
The failure to instruct on the lesser included offense cannot be deemed harmless. "'It is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction of manslaughter.' [Citations.]" (People v. Edwards (1985) 39 Cal. 3d 107, 116, 216 Cal. Rptr. 397, 702 P.2d 555.) Moreover, the factual questions posed by the omitted instructions were not necessarily resolved adversely to defendant under other, properly given instructions. (Id. at pp. 116-117.)
II
PRELIMINARY HEARING TESTIMONY
Appellant contends the trial court violated his sixth and fourteenth amendment rights to counsel and due process by admitting the preliminary hearing testimony of Joe Avila without first holding a hearing on the competence of defense counsel at the preliminary hearing. This contention is without merit.
"Evidence Code section 1291, subdivision (a), provides, in pertinent part: 'Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: . . . (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and h
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